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Tuesday, February 18, 2014

Maryland unleashes Harry the Hippo on children.

We all share concern for the protection of our children. As an ancillary proposition, Maryland law presumes that parents are solely authorized to make all significant decisions on behalf of a minor child, including those addressing the child's physical safety and well being.

In a recent case, Maryland's highest court made clear that primary parental responsibility does not shift when you drop the kids off in the play room of a big-box retailer while you peruse the sales floor. The retailer is not a babysitter, does not sit in loco parentis, and has little or no accountability for injury to your child that occurs in that playroom.

The Maryland Court of Appeals decided BJ's Wholesale Club, Inc. V. Rosen last November, in a case that has received little public attention, but it has unleashed Harry the Hippo. He is not a real animal, but an approximately 38 inch tall plastic toy intended for children to climb over, around and through.

Mr. Rosen signed three of his minor children up to use the unsupervised play area at the BJ's store, like hundreds of other parents before and after him. Like most of us, he relished the idea of non-distracted shopping while the kids noisely exhausted themselves on the slide, in the plastic ball pit....and on Harry the Hippo.

Harry the Hippo

For several months, the Rosen family kids used the the play room without incident. Presumably, the trade off between delegated parental responsibility and peaceful shopping worked just fine for the Rosens. That is, until five year old Ephraim fell off Harry the Hippo and cracked his skull.

Very literally, the boy's head had to be cut open in order to relieve the pressure created by swelling. Ephraim had pitched himself over Harry the Hippo and landed on the concrete floor, separated only by a thin carpet that did not fully absorb the impact.

Ephraim's ordeal is detailed in the circuit court complaint filed by his parents against BJ's:

The play area consisted of a number of different amusement items for children. The entire play area is covered by carpet. In most of the play area, the carpet covers a thick layer of resilient foam padding. In other areas, the carpet was adhered directly to a concrete floor. There were no markings to delineate where the floor was padded and where it was not.

On October 22, 2006, Beily Rosen went shopping at BJ’s with Ephraim. She left Ephraim in the play area.

While in the play area, Ephraim was playing on an elevated plastic play apparatus known as Harry the Hippo.

The Hippo was approximately 38" high at its peak and varied in height along the rest of the structure.

The Hippo was placed in such a manner that a child who fell forward would land directly on top of the concrete floor covered by only a thin layer of carpet.

Ephraim fell off the front of the structure landing head first directly on the concrete floor covered only by a thin layer of carpet.

Ephraim was crying profusely after the fall. His mother was notified to retrieve Ephraim from the play area.

That day Ephraim was taken to Sinai Hospital in Baltimore, Maryland. A CT scan of his head revealed that Ephraim had suffered a large acute epidural hematoma in the right temporal, and parietal convexity with extensive mass effect.

Ephraim was transferred to Johns Hopkins in Baltimore, Maryland. There he underwent an emergent, right frontal temporal parietal craniectomy for evacuation of the epidural hematoma. The surgery saved Ephraim’s life.

In defense of the lawsuit, BJ's waived a piece of paper- the waiver of liability signed by Ephraim's father 15 months before the accident. You have seen language just like this, although you likely did not ever read it or appreciate it's operation. Go ahead, try to read it out loud, with a single breath. You can't, no matter how fast you read:

I, individually and on behalf of my child, do hereby waive, release and forever discharge BJ’s Wholesale Club, Inc.; its subsidiaries and affiliates and their respective agents, employees, officers, directors, shareholders, successors and assigns from any and all claims and causes of action of any kind or nature which are in any way related, directly or indirectly, to the use of Play Center which I may have or that hereafter may accrue including any such claims or causes of action caused in whole or in part by the negligence of BJ’s Wholesale Club, Inc., its subsidiaries and affiliates, and their respective agents,employees, officers, directors, successors and assigns. I understand that my child is here at my own risk and expense and agree that neither I nor my child will bring any claim or cause of action of any kind or nature against BJ’s Wholesale Club, Inc., its subsidiaries and affiliates and their respective agents, employees, officers, directors, successors and assigns.

The Maryland Court of Appeals cited pages of examples in Maryland law where parents are expressly authorized to make binding decisions for their children, and contrasted them to instances where the State of Maryland may exercise the public interest and step in to protect children on its own account. It held that parents retain the authority to make contracts on behalf of their minor kids.

And this parental authority includes binding their kids to the limitation of liability form signed by the Rosens as a condition of letting Ephraim to ride the wild hippo.

And here is the rub: Parents sign dozens of these waivers a year for their kids. Imagine the event, program or exercise class you have ever attended with your child that DID NOT include a waiver form. In the crush of time, you probably didn't give it much thought, too. And you likely did not inspect the facility thoroughly before you left your child for an hour or two of "supervised" play, right? And what about those times when your friend delegates authority to you for a play date at the local ball pit or skate park? Do you sign away liability for their kids, too?

Should you? Where must trust end? Not easy decisions. But know this- sign the waiver of liability form and responsibility for injury to your child arising from the potential hippo attack is all yours.